Two new sets of regulations come into force in April, offering protection from what the DTI have described as "sharp marketing practices". The new rules implement an EU Directive, the Unfair Commercial Practices Directive, which aims to harmonise national consumer protection rules across the European Union. While this should in theory make it easier for traders to market their businesses and goods and services across Europe by ensuring a level playing field, for UK traders the regulations do introduce some significant changes.
One set of regulations protect businesses and in the main aim to control comparative advertising.
The other regulations, the Consumer Protection from Unfair Trading Regulations 2007, protect consumers and impose a ban on unfair commercial practices, backed up in some cases by criminal penalties. Any advertising, marketing or other "commercial practice" in relation to consumers is prohibited if it is unfair, likely to be misleading or regarded as unduly aggressive. "Commercial practice" is defined very widely and as a result lots of practices not currently prohibited will fall within the ambit of a bit of the regulations. For example, in previous articles we have mentioned the practice of "flogging" (fake blogs), and also use selective quotes from film or restaurant reviews – both of which would be covered as a "commercial practice".
While the regulations set out a test to determine whether a commercial practice is "unfair", they also set out 31 specific trade practices which are automatically considered to be unfair. These include:
- bogus "closing down" sales
- claiming falsely to be a member of a trade association or other recognised body
- making persistent and unwanted telephone calls
- refusing to leave a customer's home when asked to do
Marketers targeting products or services at "vulnerable" groups such as children, the elderly or disabled persons will need to be particularly careful as the test for fairness, which uses the concept of a "typical consumer" and "average customer" in some cases will assess fairness by reference to the average member of a "vulnerable group of consumers".
While it remains to be seen how the regulations are interpreted by the courts, it is clear that sales and marketing practices in the UK are set for a shake up.
First published on www.allmediascotland.com in Jan 2008. For further information please contact Lynn Beaumont at lynn.beaumont@todsmurray.com.
